MEMORANDUM OPINION
This matter comes before the Court on Plaintiffs’ Motion for Final Approval of Settlement and Request for Attorneys’ Fees, Costs and Incentive Awards in this putative class action. The parties previously moved for conditional certification of the class and preliminary approval of the settlement, which the Court granted by Order dated June 27, 2007. Plaintiffs filed their Motion for Final Approval on October 23, 2007. On November 6, 2007, the Court held a fairness hearing related to the settlement, as required by Federal Rule of Civil Procedure 23(e). The arguments and representations made on the record during that fairness hearing are hereby expressly incorporated and made a part of this Memorandum Opinion.
Upon a searching review of Plaintiffs’ Motions for preliminary and final approval of the settlement and certification of the class, the arguments and representations made and the exhibits submitted at the fairness hearing, the relevant statutes and caselaw, and the entire record herein, the Court shall grant Plaintiffs’ [101] Motion for Final Approval of Settlement and [103] Request for Attorneys’ Fees, Costs and Incentive Awards.
I: BACKGROUND
A. Factual and Procedural Background
Plaintiffs, Vista Healthplan, Inc. (“Vista”) and United Food and Commercial Workers Central Pennsylvania and Regional Health and Welfare Fund (“United Food”), brought this putative class action pursuant to Federal Rule of Civil Procedure 23 on behalf of themselves and a class of Third Party Payors who purchased, reimbursed, and/or paid for Ovcon 35 during the period April 22, 2004 through June 27, 2007 (the date on which the Court entered its Order preliminarily approving the settlement in this action).
The Court entered a scheduling order regarding fact and expert discovery between the parties to this action. Pursuant to that scheduling order, since Plaintiffs commenced this action in December 2005, Plaintiffs and Class Counsel have engaged in extensive investigation relating to the claims and underlying events alleged in Plaintiffs’ Second Amended Class Action Complaint. In particular, Class Counsel (1) reviewed and analyzed over 800,000 documents produced in this action; (2) researched and analyzed issues relating to class certification, liability, causation, and damages; (3) briefed substantive motions on class certification and liability; (4) deposed 27 employees of Defendants; (5) defended four Plaintiff depositions; and (6) retained and consulted with economists
On June 27, 2007, the Court entered an order conditionally approving certification of the Class, preliminarily approving the settlement and providing the form and manner of notice to the Class. In particular, the Court’s June 27, 2007 Order defined the Class as:
All Third Party Payors in the United States who purchased, reimbursed, and/or paid for Ovcon 35 at any time from April 22, 2004 through the date of the Order preliminarily approving the proposed settlement of this Action. Excluded from the Class are Defendants, their subsidiaries, affiliates, officers, and directors, and government entities.
“Third Party Payors” shall mean any nongovernmental entity that is: (i) a party to a contract, issuer of a policy, or sponsor of a plan, which contract, policy, or plan provides prescription drug coverage to natural persons; and (ii) is also at risk, pursuant to such contract, policy, or plan to provide prescription drug benefits, or to pay or reimburse all or part of the cost of prescription drugs dispensed to natural persons covered by such contract, policy, or plan.
A self-funded health benefit plan for employees of a government entity that satisfies the definition of “Third Party Payors” shall not be considered a government entity.
Order, Docket No. [100] at ¶ 3.
B. The Terms of the Settlement Agreement
Pursuant to the Settlement Agreement, Warner Chilcott and Barr will each donate branded combined hormonal contraceptive products with a retail value of $1,500,000 (for a total of $3,000,000) throughout the United States to (1) primary care physicians not currently receiving samples of the donated products who prescribe combined hormonal contraceptives, (2) university health centers or clinics, or (3) charitable organizations providing reproductive healthcare services to women. Warner Chilcott and Barr will pay all costs associated with their respective donations, and are required to provide certification to Class Counsel of their respective compliance with the Settlement Agreement’s product donation requirements on the one-, two-, and three-year anniversaries of the Settlement Agreement’s Effective Date. In addition, Warner Chilcott and Barr each agreed to pay $550,000, for a total value of $1,100,000, into a Fees Fund to be used to pay reasonable attorneys’ fees and costs. Finally, Warner Chilcott and Barr each paid $50,000, for a total of $100,000, into a Costs Fund, which was used to pay the expenses associated with providing notice to the Class, settlement administration, and any Court-approved incentive payments. See Pls.’ Mot. for Prelim. Approval of Settlement, Ex. A (Settlement Agreement), Section II; Final Mem. at 6-7.
C. Form and Manner of Notice to the Class
The Court’s June 27, 2007 Order approved Plaintiffs’ proposed form and manner of giving notice to the Class and found mailing of notices to all potential members of the Class, as well as publication of notice in National Underwriter: Life & Health/Financial Services Edition to be the “best means of providing notice practicable under the circumstances ... in full compliance with the notice
The notice program apprised Class Members as to the content of the settlement and their rights under the settlement, including the right to opt-out or object. Final Mem. at 8; Young Aff., Exs. 1 and 2. The deadline for objecting to or opting-out of the settlement was August 27, 2007. Final Mem. at 8. The Settlement Administrator received fifty (50) discrete requests to opt-out of the settlement, and a list of those opting-out from the settlement is attached as Exhibit A to the accompanying Order. Young Aff. ¶ 14. In addition, Class Counsel received one objection to the settlement. Love Aff. ¶ 19, Ex. 3 (8/7/07 Letter from M. McTigue).
D. Joint Motion for Final Approval and Fairness Hearing
On October 23, 2007, Plaintiffs filed their Motion for Final Approval of Settlement and Request for Attorneys’ Fees, Costs and Incentive Awards. As required by Federal Rule of Civil Procedure 23(e), the Court held a fairness hearing on the record on November 6, 2007. Counsel for all parties appeared at the hearing. No objectors appeared at the hearing, despite being advised of their opportunity to do so via the notice campaign.
II: LEGAL STANDARD
A class may be certified for settlement purposes only, and such “settlement-only” classes have become increasingly prominent. Amchem Prods. Inc. v. Windsor,
Approval of a proposed class action settlement lies within the discretion of the District Court. In re Vitamins Antitrust Litig.,
III: DISCUSSION
The Court first concludes that the Class meets the requirements for certification pursuant to Rule 23(a) and (b)(3), before turning to approval of the settlement pursuant to Rule 23(e), and finally to Plaintiffs’ Request for attorneys’ fees, costs and incentive awards.
A. Rule 23(a) Requirements
1. Numerosity
Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). The numerosity requirement “imposes no absolute limitations,” but rather “requires examination of the specific facts of each case.” Gen. Tele. Co. of the NW v. EEOC,
2. Commonality
Rule 23(a)(2) requires that there are questions of law or fact common to the class. Fed.R.Civ.P. 23(a)(2). “The commonality test is met when there is at least one issue, the resolution of which will affect all or a significant number of the putative class members.” In re Lorazepam & Clorazepate Antitrust Litig.,
3. Typicality
Rule 23(a)(3) requires a finding that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed.R.Civ.P. 23(a)(3). The typicality requirement aims at ensuring “that the class representatives have suffered injuries in the same general fashion as absent class members.” In re Vitamins Antitrust Litigation,
4. Adequacy
Rule 23(a)(4) requires a finding that “the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). “Two criteria for determining the adequacy of representation are generally recognized: (1) the named representative must not have antagonistic or competing interests with the unnamed members of the class, and (2) the representative must appear able to vigorously prosecute the interests of the class through qualified counsel.” Twelve John Does v. District of Columbia,
With respect to the adequacy of class counsel, Lead Counsel has successfully served as lead or co-lead counsel in several national class actions and class action settlements, as well as other complex cases litigated on behalf of consumers. See Love Aff. ¶¶ 2-3, Ex. 1 (Hanzman Criden & Love, P.A. Firm Resume). Lead Counsel’s professional competence and diligence have been favorably commented upon by a number of courts before whom counsel has appeared. Love Aff. ¶ 3, Ex. 1 at 4-6. Lead Counsel and other Class
B. Rule 23(b) Requirements
Plaintiffs seek to certify the proposed class pursuant to Federal Rule of Civil Procedure 23(b)(3). The Court therefore turns to considering whether common questions predominate over non-common questions and whether class resolution is superior to other methods of adjudication. Fed.R.Civ.P. 23(b)(3).
1. Predominance
In order to satisfy Rule 23(b)(3), Plaintiffs must show that the common issues identified by the Court above as sufficient under Rule 23(a)(2) predominate over any non-common issues. Vitamins I,
Here, Plaintiffs assert claims under the federal antitrust laws, the antitrust and/or consumer protection laws of certain states, and the unjust enrichment laws of the fifty states. Antitrust actions involving allegations of price-fixing have frequently been found to meet the predominance requirement in class certification analyses. Id. at 263 (collecting cases); Lorazepam I,
2. Superiority
Finally, the Court turns to the superiority requirement of Rule 23(b)(3), which is met when a court determines that a class action is superior to other available means of adjudication. Fed.R.Civ.P. 23(b)(3). The superiority requirement ensures that resolution by class action will
C. Rule 23(e) Requirements
Having concluded that final certification of the Settlement Class is appropriate pursuant to Rule 23(a) and (b), the Court now turns to considering whether the proposed settlement is “fair, adequate and reasonable and is not the product of collusion between the parties,” as required by Rule 23(e). Thomas,
1. Arm’s-Length Negotiations
“A presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arm’s-length negotiations between experienced, capable counsel after meaningful discovery.” Vitamins II,
2. The Terms of the Settlement in Relation to the Strength of Plaintiffs’ Case
Plaintiffs continue to believe that they could have succeeded had this action gone to trial, but readily admit that they “faced several significant substantive and procedural obstacles that would have to be overcome before Plaintiffs and the Class could establish liability or recover damages.” Final Mem. at 10. Plaintiffs acknowledge that antitrust conspiracy cases are complex and difficult, making victory uncertain. Id. Moreover, Plaintiffs’ allegations in this action have not yet been tested to see if Plaintiffs state a claim or have standing to bring this action. On May 3, 2006 Defendants filed a Joint Motion to Dismiss Plaintiffs’ Second Amended Class Action Complaint, in which Defendants argued that Plaintiffs lacked standing to bring this action and failed to state a claim under various state antitrust statutes. That motion was never resolved, but was instead dismissed without prejudice in order to allow the parties to concentrate on their settlement efforts. See Order, Docket No. [88], Mar. 2, 2007. Plaintiffs admit that the Court might have ruled in favor of Defendants upon considering the merits of that motion, and further acknowledge that there is no guarantee that Plaintiffs’ claims would have survived a motion for summary judgment or that the Class would have been certified if litigated. Final Mem. at 11.
In addition, the Third Party Payor Plaintiffs faced a unique defense due to the “co-payment differential” that results from Third Party Payors generally requiring consumers to pay higher co-payments for branded drugs than for generic versions of the same drug. Final Mem. at 11-12; Love Aff. ¶ 17. The following example demonstrates the possible import of the co-payment differential, and is based on the explanation presented to the Court during the November 6, 2007 fairness hearing. Plaintiffs acknowledge that Ovcon 35 is a relatively inexpensive drug, Final Mem. at 12, which cost $44 per pack on average during the Class Period, Grabowski Report ¶ 31. If a particular Third Party Payor set a $25 co-payment for branded Ovcon 35 during the Class Period, when a consumer purchased a pack of branded Ovcon 35 for $44, the remaining cost to the Third Party Payor was $19. If Barr’s generic version of Ovcon 35 entered the market at a 10% price discount, it would have been priced at roughly $39 per pack. However, if the Third Party Payor set a $10 co-payment for the generic version, when a consumer purchased Barr’s generic for $39, the remaining cost to the Third Party Payor would be $29. The Third Party Payor might therefore pay more to reimburse a consumer’s purchase of Barr’s generic than to reimburse a purchase of branded Ovcon 35. Even if a second generic entered the market, with a resulting 20% discount off of the price of branded Ovcon 35 and a per pack price of $35, if the consumer’s co-payment was $10, the Third Party Payor would reimburse $25 of the consumer’s purchase. Again, the Third Party Payor would be required to reimburse more for the generic version than it would have for branded Ovcon 35.
Plaintiffs admit that this defense could have led a jury to conclude that Third Party Payors suffered little to no damages as a class. Final Mem. at 12; Love Aff. ¶ 18.
3. The Status of the Litigation at the Time of Settlement
In determining whether a proposed class action settlement is fair, adequate, and reasonable, courts “consider whether counsel had sufficient information, through adequate discovery, to reasonably assess the risks of litigation vis-a-vis the probability of success and range of recovery.” In re Lorazepam & Clorazepate Antitrust Litig., No. MDL 1290(TFH),
4. The Reaction of the Class
The Class’ reaction to the settlement in this ease appears to have been overwhelmingly positive, and is a factor which counsels in favor of approval. Lorazepam II,
The sole objector in this action asserted that the case should not be settled without the Class being reimbursed for its damages. See Love Aff., Ex. 3 (8/7/07 Letter from M. McTigue). However, as Plaintiffs correctly note, the objection does not “recognize that Defendants credibly argue that the Class suffered little to no damages, and that some Third Party Payors may have in fact benefit-ted from Defendants’ alleged conduct.” Final Mem. at 13-14. Moreover, as Plaintiffs further note, “if the objector believed that it had indeed suffered damages nothing prevented the objector from” opting-out and bringing its own lawsuit against Defendants; however, the objector did not do so. Id.; see
For similar reasons, other courts have approved class action settlements that involve the distribution of products rather than individualized recoveries. See e.g., Order and Final Judgment, In re Childrens’ Ibuprofen Oral Suspension, Misc. No. 04-535(ESH) (D.D.C.11, 2006); In re Toys “R” Us Antitrust Litig.,
5. The Opinion of Experienced Counsel
As Judge Thomas F. Hogan has noted, the opinion of experienced counsel “should be afforded substantial consideration by a court in evaluating the reasonableness of a proposed settlement.” Lorazepam II,
D. Attorneys’ Fees, Expenses, and Incentive Awards
Finally, the Court turns to considering the attorneys’ fees, expenses, and incentive awards requested in Plaintiffs’ Motion. Neither Defendants nor any members of the Class oppose these requests, and the Court addresses each in turn.
Class Counsel requests that the Court grant them a fee award of the $1,100,000 placed in the Fees Fund as reasonable fees and costs in prosecuting this action. Love Aff. ¶¶ 22-25. Courts have a duty to ensure that claims for attorneys’ fees are reasonable. Hensley v. Eckerhart,
The Court believes that it is appropriate to consider the various settlement funds collectively as a “constructive common fund,” valued at $4.2 million. Vitamins III,
“The D.C. Circuit has joined other circuits ‘in concluding that a percentage-of-the-fund method is the appropriate mechanism for determining the attorney fees award in common fund cases.’” Lorazepam II,
(1) the size of the fund created and the number of persons benefitted; (2) the presence or absence of substantial objections by members of the class to the settlement terms and/or fees requested by counsel; (3) the skill and efficiency of the attorneys involved; (4) the complexity and duration of the litigation; (5) the risk of nonpayment; (6) the amount of time devoted to the case by plaintiffs’ counsel; and (7) the award in similar cases.
Id. at *8 (quoting Gunter v. Ridgewood Energy Corp.,
The Court has already addressed the sole objection to the settlement and there are no objections to the request for attorneys’ fees. As Plaintiffs correctly note, the lack of objections is significant because the Class is made up of thousands of sophisticated healthcare companies. Id. (citing Freeport Partners v. Allbritton, Civil Action No. 04-2030(GK),
Class Counsel also avers that they expended an aggregate of 4,575.4 hours prosecuting this action, resulting in a total lodestar of $1,550,110. See Love Aff. ¶¶ 23; Pls.’ Mot. for Final Approval, Exs. D-I. In addition to the time expended, Class Counsel incurred expenses of $225,350.43. Love Aff. ¶ 24. Class Counsel is requesting a total of $1,100,000 from the Fees Fund to reimburse them for over $1,700,000 in total lodestar and incurred costs. Final Mem. at 27. Class counsel is requesting attorneys’ fees that are less than their lodestar without any multipli
As part and parcel of their request for $1,100,000 in attorneys’ fees and costs, Class Counsel seek reimbursement for $225,350.43 in out-of-pocket expenses. “[T]here is no doubt that an attorney who has created a common fund for the benefit of the class is entitled to reimbursement of ... reasonable litigation expenses from that fund.” Vitamins III,
Finally, Class Counsel requests that the Court award each Plaintiff (Vista and United Food) a $12,500 incentive award, to be paid out of the Costs Fund. Final Mem. at 30; Love Aff. ¶¶ 26-27. The Court notes that Class Members were advised of these potential awards via the notice program, and that no objections to the incentive awards were received. Final Mem. at 30. As Judge Hogan noted in the Lorazepam case, “courts routinely approve incentive awards to compensate named plaintiffs for the services they provided and the risks they incurred during the course of the class action litigation.”
IV: CONCLUSION
For the foregoing reasons, the Court shall grant Plaintiffs’ [101] Motion for Final Approval of Settlement and [103] Request for Attorneys’ Fees, Costs and Incentive Awards. The parties’ proposed Order and Final Judgment accompanies this Memorandum Opinion.
Notes
. In the interest of consistency with the parties’ filings and the Settlement Agreement, the Court refers to the class of Third Party Payors at issue in this Memorandum Opinion as the "Class."
. Although the objection letter is directed to the Clerk of Court, United States District Court for the District of Columbia, and correctly addressed, the Court did not receive a copy of the objection letter and was therefore unaware of the objection until Plaintiffs filed their Motion for Final Approval on October 23, 2007.
. The Court notes that, as discussed below, pursuant to the Settlement Agreement and upon Court approval, the named Plaintiffs will receive incentive awards. No objections to these incentive awards have been raised, and the Court therefore concludes that the payment of the incentive awards does not, in and of itself, make Plaintiffs’ interests antagonistic to those of absentee class members. In particular, the Court notes that it is within the Court’s discretion to grant the incentive awards, and that Plaintiffs had no assurance of receiving such awards during the pendency of this litigation.
. At the Fairness Hearing, counsel for Warner Chilcott presented the Court with both redacted and unredacted versions of Dr. Grabowski's reports. The Court has had no need to refer to unredacted materials.
